AP (by his litigation friend, BA) v Tameside Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 20 January 2017 |
| Neutral Citation | [2017] EWHC 65 (QB) |
| Docket Number | Case No: C90MA063 |
| Court | Queen's Bench Division |
| Date | 20 January 2017 |
[2017] EWHC 65 (QB)
Mr Justice King
Case No: C90MA063
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Liverpool Civil and Family Court
35 Vernon St, Liverpool L2 2BX
Sam Karim (instructed by Stephensons Solicitors) for the Claimant
Jonathan Auburn (instructed by Tameside MBC Legal Department) for the Defendant
Hearing dates: 9th November 2016
This matter has come before me pursuant to the Order of Deputy District Judge Rome dated the 29 th of July 2016 to determine a preliminary issue as to limitation.
This Claimant was born on the 14 th of June 1987. He is now some 29 years of age. He is a protected party, that is to say he lacks capacity to conduct these proceedings which he brings by his brother and litigation friend BA. However, he has a further material lack of capacity. He has a diagnosis of a learning disability as a result of Down's syndrome and as result he lacks capacity to make decisions for himself in respect of his residence and care package for the purposes of the Mental Capacity Act 2005 (The 2005 Act). As is put in paragraph of the Particulars of Claim, 'he satisfies both the functional and diagnostic tests of section of the Mental Capacity Act 2005' that is to say he is unable to make a decision for himself in relation to these matters because of an impairment of, or a disturbance in the functioning of, his mind or brain.
Mr Karim at the outset of his submissions asked me to take on board the full extent of the Claimant's disability giving rise to this incapacity by reference to the description of his condition given in the Independent Social Workers' Complaint Investigation Report' of January 2014, in these terms:
'AP is a young man of 26 years. He has a number of learning disabilities as a result of Down's syndrome, possibly autistic spectrum disorder (undiagnosed) and physical health problems, including arthritis and diabetes. In 2001 he lost his sight following detachment of his retinas and is assessed as having some hearing loss/noise sensitivity. He has little speech but has some understanding and is able to indicate some of his feeling and likes and dislikes, but he is not to be regarded as having the capacity to make major decisions, for example where he lives. He is a large man and can unknowingly pose some risks to himself and others, including other vulnerable people and those who are involved in providing him with care. The behavioural support/nurse specialist, Mike Hansen, said AP was not aggressive (in a review report…he is described as calm, gentle, and with a good sense of humour) but his sight loss was a significant reason for him being difficult to care for safely as he reaches out and tries to grab at things/people to try to make sense of his surroundings'.
None of the above is in dispute. Nor is it in dispute that the Defendant has statutory obligations to meet the Claimant's assessed needs and to comply with the provisions of the 2005 Act. Up until February 2011 the Claimant was being cared for at his family home by his mother M who was the full-time carer both to the Claimant and her sister, the Claimant's aunt, K.
These proceedings were issued on the 24 th of February 2016.
It is a claim brought for declaratory relief and damages for breach of the Claimant's rights under Articles 5 and 8 of the European Convention on Human Rights ('the ECHR'). It is brought pursuant to sections 7(1)(a) of the Human Rights Act 1998 ('the Act') (' HRA') under which a person who claims that a public authority has acted in a way made unlawful by section 6(1) of the Act ( 'It is unlawful for a public authority to act in a way which is incompatible with a Convention right') may 'bring proceedings against the Authority under this Act in the appropriate court or tribunal'.
Limitation
Section 7(5) of the Act provides:
'(5) Proceedings under subsection 1(a) must be brought before the end of:
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question'
The claim
The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1 st of February 2011 and the 12 th of August 2013, a period of some two and a half years. February 2011 was when he was removed by the Defendant from the care of his mother who was accused of an act of wilful neglect to his Aunt, and removed from his family home, and placed in what is described as respite accommodation at Stanhope Close. The 12 th of August 2013 was when he was returned home. In between those dates his Mother was charged and prosecuted but ultimately acquitted on the 5 th of July 2012.
The Claimant also claims that the Defendant's actions during this same period amounted to a violation of his rights to a private and family life under Article 8 by reason of an unjustified interference with the family life existing between himself and his mother and brother.
Reference is made in the Particular of Claim to the January 2014 investigation report (IP) prepared by the independent social worker (Mrs S Williams) to which I have already referred. This is pleaded (at paragraph 4) as having been produced following a ' series of complaints mounted by Claimant's mother'. Mr Karim emphasises to me that the mother is not the Claimant's litigation friend in these proceedings (this is his brother). As indicated, a copy of the report has been before this court. It is a lengthy report (some 70 pages). It contains numerous criticisms of the Defendant's handling of the Claimant's removal of the family home and of the process of the Defendant's decision making as regards the Claimant's residential placement.
Key allegations relied on in the Particulars of Claim in support of the deprivation of liberty claim are that during the material period:
i.) as a matter of fact, the Claimant was deprived of his liberty, reliance being placed on the decision of the Supreme Court in Cheshire West [2014] UKSC 19 albeit that is a decision which post dated the material period;
ii.) there was no authority for that deprivation of liberty either by an order from the Court of Protection or by an authorisation made under statutory powers;
iii.) the Defendant made no or no adequate (a) assessment as to the Defendant's capacity to make decisions about his deprivation of liberty; and/or (b) best interests assessment in relation to his deprivation of liberty.
As regards the Article 8 claim a key allegation at paragraph 11.2 is that the failure to return the Claimant to his mother following her acquittal in July 2012 until August 2013 meant they were unable or restricted in maintaining or continuing their relationship.
For the purposes of submissions being made as the importance of the claim as a vindication of the Claimant's rights and as to its underlying merits, I was taken to a number of passages in the Judgment of Peter Jackson J. in Neary [2011] EWHC 1377 (COP). In paragraphs 21 to 24 of Neary reference is made to the need of any local authority which seeks to regulate or restrain or confine an incapacitated person to point to some specific justifying statutory authority or else obtain the sanction of the court; the right to freedom originating in the Magna Cater as being a fundamental constitutional right; the need for decisions about incapacitated people to be determined by their best interests with the starting point being their right to respect for their family life; that the burden is always on the State to show that an incapacitated person's welfare cannot be sustained by living with and being looked after by his family with or without outside support.
For the same purpose I was taken to section 4A of the Mental Capacity Act 2005 and Schedule A1 governing authorisations under the Act and to those passages in Neary (see in particular paragraph 33) referring to the DOL (Deprivation of Liberty) regime provided for in the Act and its Code of Practice, and emphasising its purpose if properly followed (and that of access to the Court of Protection) as an important safeguard against arbitrary detention.
I was referred to the governing principles in section 1 of the 2005 Act. Any act done or decision made under the Act for or on behalf of someone who lacks capacity must be in his best interests (s1(5)). There is a need to adopt the least restrictive placement option consistent with the best interests of the individual concerned (see s1(6) ' regard must be had whether the purpose can be effectively achieved in a way which is less restrictive of the person's rights and freedom of action'). Peter Jackson J. properly observed at paragraph 157 that Article 5(1) is only engaged if there is a deprivation of liberty ' whereupon the safeguards provided by the DOL regime under section 4A and Schedule A1 of the Act come into play' and at paragraph 158 that the deprivation of Liberty Safeguards Code of Practice supplementing the main Mental Capacity Act 2005 Code of Practice, refers at paragraph 2.6 to a number of features that may accompany deprivation of liberty including ' staff exercise complete and effective control over the care and movement of a person for a significant period' and ' a decision has been taken by the institution that the person will not be released into thecare of others, or permitted to live elsewhere, unless in the staff in the institution consider it appropriate'.
I should observe at once however that an authorisation under section 4A and Schedule A1 could not have been obtained in this...
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